Phillips v. Ottey et al

Filing 67

MEMORANDUM AND ORDER DISMISSING Plaintiff's claim brought under Article 10 of the Maryland Declaration of Rights and DENYING 59 partial motion to dismiss, or, in the alternative, partial motion for summary judgment. Signed by Judge Deborah K. Chasanow on 1/4/2016. (sat, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
ARTHUR PHILLIPS
:
v.

:

Civil Action No. DKC 14-0980

:
DR. COLIN OTTEY, et al.
:
MEMORANDUM OPINION AND ORDER
Defendants filed a partial motion to dismiss or for summary
judgment, arguing solely that, as non-governmental actors, they
are not subject to the First Amendment and thus Plaintiff’s
§ 1983 retaliation claim fails.1

Generally, of course, a prison

contractor can be liable under 42 U.S.C. § 1983, as acting under
color of state law.

West v. Adkins, 487 U.S. 42, 54 (1988).

Defendants cite no authority for treating First Amendment claims
differently than Eighth Amendment claims.
been discussed without any such distinction.

Similar claims have
See, e.g., Burton

v. Lynch, 664 F.Supp.2d 349, 366-68 (S.D.N.Y. 2009), Randle v.
Alexander, 960 F.Supp.2d 457, 482 (S.D.N.Y. 2013).
their argument to the contrary fails.
some

of

Defendants

(all

except

In a reply memorandum,
argue

that

respondeat superior cannot provide a basis for liability.

They

1

the

Accordingly,

Mr.

Flury)

The same analysis would apply to the parallel argument
under Article 19 of the Maryland Declaration of Rights. On the
other hand, Plaintiff concedes that his claim under Article 10
should be dismissed.

may well be correct, but the court declines to address an issue
raised for the first time in a reply memorandum.
Accordingly, it is this 4th day of January, 2016, by the
United

States

District

Court

for

the

District

of

Maryland

ORDERED that:
1.
Maryland

Plaintiff’s

claim

Declaration

of

brought

Rights

under

BE,

and

Article
the

same

10

of

hereby

the
IS

DISMISSED;
2.

Defendants’

partial

motion

to

dismiss

Plaintiff’s

amended complaint, or, in the alternative, partial motion for
summary judgment BE, and the same hereby IS, DENIED; and
3.

The

clerk

will

transmit

copies

of

this

Memorandum

Opinion and Order to counsel for the parties.

/s/
DEBORAH K. CHASANOW
United States District Judge

2